Narendra Kumar vs Banwari Lal Agrawal
2023 Latest Caselaw 12879 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 93
 

 
Case :- CRIMINAL REVISION No. - 2783 of 2004
 

 
Revisionist :- Narendra Kumar
 
Opposite Party :- Banwari Lal Agrawal
 
Counsel for Revisionist :- Rajeev Kr. Shrivastava
 
Counsel for Opposite Party :- Ashok Kumar Sharma
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Case called out in the revised list. None responds for the revisionist and for the opposite party, hence, heard Sri O.P. Mishra, learned AGA for the State and perused the papers on record.

2. This criminal revision has been filed on behalf of the revisionist challenging the order of acquittal dated 28.04.2004 passed in Criminal case no. 3854 of 2002 (Narendra Kumar vs. Banwari Lal Agrawal) under Section 138 of the Negotiable Instruments Act, Police Station Kotwali, District Mathura, whereby the learned trial court acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act.

3. From Perusal of the judgment and the lower court record, it becomes quite clear that this case under Section 138 of the Negotiable Instruments Act was filed on the basis of a dishonour of a cheque for Rs. 23,400/-; Admittedly, the cheque was produced for encashment on 15.02.1999, which was returned to the drawee with a remark of 'insufficient funds' on 09.07.1999; the complainant issued a notice to the accused for repayment of money on 15.07.1999, which was received by him on 17.07.1999; From the perusal of the record, it is quite clear that the complaint in this case was filed on 25.08.1999; Perusal of the judgment shows that in the statement given under Sections 251 Cr.P.C. and 313 Cr.P.C., the accused said nothing in his defence; It may further be noted that though he proposed to give evidence in his defence (as stated by him in his statement under Section 313 Cr.P.C.) but produced nothing; On page no. 6 of the judgment, the learned trial court discussed and considered the evidence as given by the complainant and also the documentary evidence and instead of drawing a presumption as provided under Section 139 of the Negotiable Instruments Act, gave a conclusion that the complainant failed to prove that the cheque was issued for discharge of debts or liabilities; It may further be noted that the complainant had, in his statement not only supported the complainant case but also was able to prima facie show that the cheque was given by the accused to him as earlier the complainant had given Rs. 20,000/- to the accused for the purpose of investment in a company under some scheme; The money was given to the accused as he was an agent for L.I.C. and has been also working as an agent for his customers, who wanted to invest in different financial schemes.

4. In view of the circumstances and facts alleged by the complainant in his statement on oath given by him in support of the complaint case, the burden shifted on the defence to rebut the presumption which legally should have been drawn under the provisions of Section 139 of the Negotiable Instruments Act but in this case the opposite has been done; the learned trial court disregarded the evidence on record and completely ignored the legal provisions and shifted the burden on the complainant in a one sided manner to prove to the hilt that the cheque was issued to discharge some legal liabilities.

5. In this view of the matter, the judgment of the trial court is not sustainable and is liable to be set aside. The order of acquittal dated 28.04.2004 is set aside. Hence, this criminal revision is allowed.

6. Copy of this order be immediately be transmitted to the court concerned for further proceeding in the case.

Order Date :- 26.4.2023

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